dismissed EB-2 NIW Case: Internal Medicine

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PllJRtlC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 2 7 2012 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an 
Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of 
the Immigration and Nationality Act, 8 U.S.c. § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. 
Please be advised that any further inquiry that you might have concerning your case must be made to 
that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have 
additional information that you wish to have considered, you may file a motion to reconsider or a 
motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. 
§ 103.5. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 
1 03.5(a)(1 )(i) requires that any motion must be filed within 30 days of the decision that the motion 
seeks to reconsider or reopen. 
Thank you, 
~fl-~flu-n'-
Cz.. Perry Rhew 
Chief, Administrative Appeals Office 
www.llscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a physician practicing internal medicine. At the time he filed the 
the petitioner was chief of staff and staff physician 
The petitioner asserts that an exemption from the 
reqUIrement a J a certification, is in the national interest of the United 
States. The director found that the petitioner qualifies for classification as a member of the professions 
holding an advanced degree, but that the petitioner has not established that an exemption from the 
requirement of a job offer would be in the national interest of the United States. 
On appeal, the petitioner submits a statement from counsel. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver ofJ ob Offer -
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, WIst Cong., 1st Sess., 11 (1989). 
Page 3 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptiona1."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter a/New York State Dept. a/Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a 
substantially greater degree than would an available· U.S. worker having the same minimum 
qualifications. 
While the national interest waiver hinges on prospective national benefit, it clearly must be established 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit. The inclusion of the term "prospective" is used here to require 
future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By 
statute, aliens of exceptional ability are generally subject to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
alien seeks classification as an alien of exceptional ability, or as a member of the professions holding 
an advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of 
expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on July 1, 2010. In an introductory statement, counsel 
stated: "According to renowned leaders in the field, [the petitioner] is established as a foremost 
expert in the field of internal medicine. This is evidenced by his publications and presentations, 
leading and critical roles, distinctions and memberships in medical societies." 
Counsel asserted that the petitioner would be unable to obtain a labor certification, because his 
position requires a combination of skills and special knowledge and abilities. Counsel cited 
Department of Labor regulations and a decision by the Board of Alien Labor Certification Appeals 
Page 4 
(BALCA) to support the claim that a labor certification application for the petitioner would likely be 
denied as "unduly restrictive." 
The inability to obtain a labor certification would not, by itself, be a deciding factor in the 
petitioner's favor. The wording of the statute makes it clear that exemption from the job offer 
requirement rests on the national interest, not on an alien's inability to obtain a labor certification. 
Even so, the cited materials do not strongly support counsel's assertions. In the cited administrative 
decision, BALCA ruled: 
This Panel finds the unqualified term "artistic ability" to be vague and SUbjective 
without any guidelines or criteria available to determine whether an applicant is 
qualified for the position. Accordingly, the special requirement of artistic ability is 
unduly restrictive under §656.21(b)(2), because the Employer has rejected otherwise 
qualified U.S. workers based on this vague, subjective requirement. 
Michael Graves Architect, 89-INA-131, 1990 WL 300112 (Bd. Alien Lab. Cert. App. Feb. 21, 
1990). Counsel compared the vaguely-defined "artistic ability" in Michael Graves to the present 
petitioner's "expertise [in] clinical and novel research, as it pertains to internal medicine." In 
Michael Graves, BALCA's objection was that "artistic ability" is subjective and difficult to 
"quantify ... in terms of length of training or experience." Id. Counsel did not show that the same 
can be said for medical expertise. The outcome of a medical procedure, or the results of a research 
study, rest on measurable and objective factors, rather than the individual esthetic sensibilities of an 
artist or architect. 
Counsel stated that a job requiring a combination of duties is not amenable to labor certification, 
because "the Department of Labor stipulates that the employer describe its job opportunity without 
"unduly restrictive" requirements [22 C.F.R. sec. 656.21(b)(2)]." The cited regulation actually 
appears in chapter 20, not 22, of the Code of Federal Regulations. The regulation contains no flat 
prohibition relating to a combination of duties. Rather, 20 C.F.R. § 656.21(b)(2)(ii) reads: 
If the job opportunity involves a combination of duties, for example engineer-pilot, 
the employer must document that it has normally employed persons for that 
combination of duties and/or workers customarily perform the combination of duties 
in the area of intended employment, and or the combination job opportunity is based 
on a business necessity. 
The above regulation clearly allows, under certain conditions, labor certification for a position that 
"involves a combination of duties." Counsel cited no BALCA decision or other authoritative source 
to show that the Department of Labor has categorically disallowed labor certification for positions 
that combine the duties of a physician and those of a researcher. 
Counsel contended that the petitioner, having "been hired to serve in leading roles at some of the 
country's and the world's top medical institutions . .. was selected after nationwide searches in 
competition with extremely highly qualified peers because he is regarded as superior . .. and 
because he is able to achieve results that are far beyond the norm" (counsel's emphasis). 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). It is by no means a settled or undisputed fact that 
the petitioner has had "leading roles" at leading medical institutions, or that those institutions hired him 
on the basis of his reputation as a superior physician/researcher. 
Counsel asserted that the petitioner "has implemented" "several new medical programs ... to 
improve levels of hospital efficiency and patient care offered at various hospitals. Please note that 
not only have several of these programs been widely implemented in different parts of the country, 
but the work has resulted in publication and citation in very prominent medical journals." Counsel 
did not identify or describe these "new medical programs," but rather asserted that evidence 
regarding them is to be found somewhere in the nine folders that comprise the record of proceeding. 
There is no comprehensive index to show the location of individual exhibits among the thousands of 
pages of documents submitted. 
Counsel claimed that the record shows "the indispensable role that [the petitioner] has played at several 
very prominent institutions." The positions the petitioner has held have all been residencies, 
fellowships or other temporary training assignments, indicating that each of the employers considered 
the petitioner's professional training to be incomplete. Furthermore, there exists no blanket waiver 
based on the reputation of a given employer. Whatever an institution's standing in a particular field, an 
alien's employment there is not prima facie evidence of eligibility for the waiver. One's impact and 
influence on the field, rather than where that impact originates, is the chief consideration. 
With respect to the petitioner's published work, the petitioner submitted copies of several case studies, 
in which the petitioner reported the diagnosis and treatment of individual patients, and an unpaginated 
publisher's proof of an article that reported the results of "A Survey of the Program Directors in Internal 
Medicine Residency Programs in the United States." None of these articles reported the outcome of 
medical research studies. 
The petitioner submitted several witness 
achievements but few details about them. 
stated that the p regarded as one of the most talented 
mternal medicine experts who has risen to the very top of his specialty." 
credited the petitione~ficant contributions in his field," but did not identify 
what those contributions were. _ made a number of superlative claims, such as the 
assertion that "[ c ]ertification by the Board of Internal Medicine is one of the most difficult 
distinctions to earn in all of medicine," but cited no independent, documentary evidence to support 
those claims. 
stated that the petitioner's 
"publication of extraordinary clinical cases ... have made [the petitioner] a leader in his field." _ 
Page 6 
"also cited "an extreme shortage of Physician-Scientists." With respect to the claimed shortage, 
Congress addressed the issue of physician shortages with the passage of section 203(b )(2)(B)(ii) of the 
Act, which spells out a procedure by which a physician in a shortage area can qualify for the waiver. 
The implementing regulations for this procedure appear at 8 C.F.R. § 245.12. The petitioner did not 
submit the evidence that those regulations require, relying instead on the general assertion of a shortage 
in his specialty. Outside ofthe statutorily specified provisions identified above, a shortage of workers is 
grounds for obtaining, rather than waiving, a labor certification. See NYSDOT, 22 I&N Dec. at 218. 
of George Mason University, who has "known [the petitioner] for many 
years," stated: "A review of his resume indicates that his academic research contributions have been 
well received by the professional medical community." does not indicate how this 
information would be evident from "review of [the petitioner's] resume." 
stated that the petitioner's 
"research is well respected" and that he "holds as an excellent physician-scientist," but 
provided few details except to note that, at he served as a clinical research 
coordinator for "multiple studies ... focused on developing safe medications for treating victims of 
schizophrenia, acute mania and bipolar disorders." The disorders so named are all psychiatric 
disorders. The petitioner has not shown that disorders fall within the purview of internal medicine, 
the area of practice through which the petitioner claims he will serve the national interest. 
stated 
that the petItlOner "has made an extraordinary name for himself, particularly because of the 
pioneering work that he has performed," but _ did not provide any information about the 
petitioner's work except to state that it was "in the field of medicine and gastroenterology." 
••••••••••••••••••••• University School of Medicine, stated: 
It is ... notable that [the petitioner] has been awarded several travel grants to attend 
the annual meetings of such preeminent organizations as the American College of 
Physicians . . . , the American College of Gastroenterology, the Association of 
Program Directors of Internal Medicine (for $2,000.00) and the digestive Disease 
Week, which is the largest and most important gathering of gastroenterologists in the 
world. The award of travel grants is one of the highest honors for a physician­
scientist. ... That [the petitioner] has been awarded such travel grants is objective 
evidence of his superior reputation as a physician-scientist. 
The petitioner has not submitted evidence to show that a travel grant "is one of the highest honors 
for a physician-scientist." Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Saffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). 
Page 7 
On January 24,2011, the director issued a request for evidence, instructing the petitioner to "submit 
documentary evidence to establish . . . a past record of specific prior achievement that justifies 
projections of future benefit to the national interest." 
In response, counsel stated that the petitioner "is heralded as an extraordinary clinician in his field." 
Counsel stated that the petitioner's "innovative work regarding a Clostridium difficile PCR-based 
test in the diagnosis of a serious life-threatening infection has been implemented by many U.S. 
hospitals." The record does not show that the petitioner created the PCR-based test, or conceived of 
the idea of using the test to diagnose C. difficile. Rather, the petitioner compared the effectiveness of 
different testing methods. Therefore, the record does not show that the petitioner is responsible for 
the widespread use of the PCR-based test for C. difficile diagnosis. 
The petitioner submitted no new witness letters, but did submit copies of several letters originally 
submitted in support of an earlier (denied) petition to classify the petitioner as an alien of 
extraordinary ability in the sciences under section 203(b )(1 )(A) of the Act. Overall, the letters are 
similar in tone and content to the letters submitted with the initial filing of the present petition, with 
witnesses selecting various episodes from the petitioner's career and them to be major 
accomplishments in modem medicine. For example, 
_described "one research project performed by [the petitioner] that has gamed phenomenal 
commendation in the medical community. He designe~ to look at patients undergoing 
endoscopic procedure and assess the risk of bleeding." _ did not describe, and the record 
does not show, the nature or extent of the claimed "phenomenal commendation in the medical 
community." Numerous other witnesses claimed that the petitioner has reached the top of his 
profession, but the record does not show that this ascent has left any documentary evidence (as 
opposed to letters from witnesses selected by the petitioner and written specifically in support of visa 
petitions on his behalf). 
The petitioner submits copies of articles by other researchers, containing citations to the petitioner's 
past work. Counsel asserted: "The reliance on his work by clinical practitioners throughout the 
country is evidence of its trailblazing and landmark nature." 
The petitioner submits evidence of eight citations of his published work. The petitioner submitted 
nothing to show that this rate of citation was out of the ordinary in his specialty. 
The director denied the petition on April 27, 2011. The director acknowledged the intrinsic merit of 
the petitioner's occupation, but found that the petitioner had not established that its national scope. 
The director noted that the beneficiary had five basic duties - "Patient care," "Research," 
"Administrative duties," "Mento ring young physicians" and "Teaching" - and found that "only 
research duties would potentially qualify as national in scope." The director also found that the 
petitioner has not shown that his individual impact in his field was sufficient to warrant the national 
interest waiver. The director found the petitioner's citation history to be minimal, and found that the 
petitioner had not shown his evidence to demonstrate influence in the field. 
Page 8 
On appeal, counsel asserts that "the impact of [the petitioner's] work has spread beyond his hospital 
community," and disputes the director's finding that the petitioner's work lacks national scope. The 
AAO agrees with counsel that the petitioner has established that his research, published in journals 
and otherwise disseminated through professional gatherings, is national rather than local in scope. 
The director's observation that the petitioner has several local duties does not negate the national 
scope of the petitioner's research work. The AAO will, therefore, withdraw this element of the 
director's determination. 
Less persuasive, however, is counsel's contention that the petitioner's work has "had a significant 
national influence in improving healthcare." The petitioner has exhaustively documented his 
professional career, but the record offers no objective support for witnesses' claims that the 
petitioner has risen to "the top" of his profession. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The BIA also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 I&N Dec. 
500, 502 n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
Here, many of the witnesses have made claims that purport to be matters of fact rather than expert 
opinion, regarding objectively verifiable matters that the record fails to corroborate. Many of these 
claims are so exaggerated that their credibility is in serious doubt. For instance, a number of 
witnesses have contended that the petitioner has achieved a national or international reputation as 
one of the best in his field, but the witnesses have rarely provided many details about this reputation. 
The AAO notes that the petitioner had not yet completed his medical training when the witnesses 
wrote their letters. Many of the witnesses have strong credentials themselves, but these 
qualifications merely serve to illustrate the gulf of experience and accomplishment between those 
witnesses and the petitioner. The AAO agrees with the director's finding that the objective evidence 
of record simply fails to offer any credible support for the claims in the witnesses' letters. 
Page 9 
Counsel contends that the labor certification process would interrupt the petitioner's work in the 
United States, "potentially on a pennanent basis." This is an unsupported assumption. Counsel 
repeats the claim that the petitioner's combination of clinical and research duties is not suitable for 
labor certification, even though the regulation that counsel previously cited to support that claim 
actually shows that the Department of Labor will readily consider a combination of duties under 
appropriate circumstances. 
The petitioner's combined research and clinical positions have all been admittedly temporary 
traini~ents. The petitioner has not documented any fonnal offer of pennanent employment 
from __ and no indication that the labor certification requirement has prevented such an offer 
being extended. 
In tenns of pennanent posItIons involving both research and clinical medicine, many of the 
petitioner's witnesses hold medical school faculty positions that involve exactly that combination. 
As the fonner Immigration and Naturalization Service (now USCIS) noted in NYSDOT, the 
Department of Labor (DOL) has a separate labor certification procedure for college and university 
teaching positions. Id. at 218 n.4. The specific regulations have since changed, but the current DOL 
regulation can be found at 20 C.P.R. § 656.18. 
Counsel contends that the petitioner has submitted "clear evidence" of "great contributions to the 
field through both his research work as well as clinical abilities." The petitioner has submitted 
ample evidence that he has been active as a researcher, a physician, and an instructor of less 
experienced medical students. The record does not, however, contain "clear evidence" of the 
importance of the petitioner's contributions. The witness letters contain high praise of the 
petitioner's work, but for reasons already explained, those letters are of highly dubious credibility. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.